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In a Virginia Divorce, Judges Only Divide Marital Assets Acquired Before Separation
In a Virginia divorce, you must live separate and apart for either 12 months (with kids) or 6 months (without kids) in order to file a no- fault divorce. All divorces in Virginia must be based on grounds. With a no-fault divorce, the ground is “living separate and apart for 6/12 months with the intent by at least one of the parties that separation to be permanent”.
You Must Live Separate and Part for 12 or 6 Months for a Virginia No-Fault Divorce
In Virginia, the grounds for divorce in a “no-fault” case are based on the parties “living separate and apart” for a specific period of time.
- 12 Months. The required separation period is 12 months when a couple has minor children.
- 6 Months. The required separation period is 6 months when there are no minor children. To apply this 6-month time period, the couple must also have a signed Property Settlement Agreement (PSA). Otherwise, couples without minor children must also live separate and apart for 12 months.
- Intent that Separation be Permanent. Virginia also requires that at least one of the spouses must have the intention that the separation be permanent. Intent can be tricky to prove, since it usually only exists in a person’s mind. Keep this in mind if you plan to live under the same roof for any part of your 12/6 month separation period and consider reducing your “intent” to a signed writing, such as a Property Settlement Agreement (PSA).
In Divorce Mediation, the Parties Reach Agreement on the Date of Separation
The date of separation goes into the mediating spouses’ Property Settlement Agreement (PSA). They are bound by that date. The Mediated Property Settlement Agreement is a contract which is enforceable in a court of law. All component parts of that PSA are then incorporated into the couple’s Final Order of Divorce (aka Divorce Decree) when the judge signs off on their divorce.
The Date of Separation Determines When the Clock Starts Running for a Virginia No-Fault Divorce
To begin the 12 or 6-month countdown for a no-fault divorce, the clock starts running when the parties agree it starts (or started) running. The easiest date is when one of the spouse’s actually moves out of the marital residence. If the coupe is still living under the same roof -- which is permitted in Virginia -- choosing a date of separation is more art than science. There are guidelines; but no hard and fast rules.
Guidelines for Living Under the Same Roof During Your Period of Separation in a Virginia Divorce
The following is a list of guidelines that will help you in determining whether you can confidently move forward with a no-fault divorce, based on living separate and apart, in Virginia:
- ABSTAIN FROM: Sharing a bedroom, sexual relations, sharing meals, doing each other’s laundry, wearing wedding or engagement rings.
- DON’T PRESENT YOURSELF TO THE WORLD AS A MARRIED COUPLE: Don’t go out together to parties or family functions (as much as reasonably possible considering your children’s feelings). Tell people you are living separate lives.
- LIVE FINANCIALLY SEPARATE: To the extent possible, live separate financial lives. Be very careful with this, however, and seek guidance from a divorce professional before you start dividing and distributing assets and debts prior to settling your entire case. It is rare that people living under the same roof actually live separate financial lives, but you can do your best to accomplish this through a thoughtful discussion and settlement of how bills will be paid, whether there will be reimbursements to each other, and whether there will a joint account set up to pay for certain expenses.
- WRITE A LETTER OF INTENT: Write and sign a letter to your spouse detailing your intent to live separate form them. Emphasize that this intent is permanent. However, because the date of separation can have serious implications on the division and distribution of property, seek professional guidance before you write and sign such a letter.
- OBTAIN A WITNESS: You will need a witness who can swear that the two of you have indeed been living separate and apart for the requisite time period. This is a requirement under Virginia divorce law.
HAVE A CLEAR REASON FOR LIVING UNDER THE SAME ROOF DURING THIS TIME PERIOD. Even though living under the same roof, during your mandatory 6/12 month period of separation, is common practice, you will want to prepared with an explanation as to why one of you has not moved out. Living under the same roof during this separation period is not favored by the courts … they merely tolerate it. So, just in case you end up in front of a prickly judge (which will not happen if you mediate your divorce settlement), be prepared with an explanation.
Why Would I End Up in Court Over the Date of Separation?
In Virginia, almost all assets, and most debt, acquired post separation belongs to the spouse who acquired that asset or debt. It does not go into the “marital pot” for division in distribution. This is why spouse’s end up in litigation over the date of separation.